STATE OF OHIO v. WILLIAM VENES
No. 98682
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
May 9, 2013
[Cite as State v. Venes, 2013-Ohio-1891.]
BEFORE: Stewart, A.J., Celebrezze, J., and Rocco, J.
JOURNAL ENTRY AND OPINION; Case No. CR-546427
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-546427
RELEASED AND JOURNALIZED: May 9, 2013
Rick L. Ferrara
2077 East 4th Street, Second Floor
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jesse W. Canonico
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
{¶1} Defendant-appellant William Venes pleaded guilty to 98 counts of pandering sexually oriented matter involving a minor and one count of possession of criminal tools. The court sentenced Venes to eight years on 97 counts, with three of those counts to be served consecutively. It also imposed a six-month sentence on the possession of criminal tools count, to be served concurrent with the other counts. In total, Venes was ordered to serve 24 years in prison. In this appeal, Venes complains that the court had no authority to order consecutive sentences and that if it did, it failed to make the requisite findings necessary to impose sentences consecutively. He also argues that his 24-year sentence is disproportionate to those imposed on similar offenders.
I
{¶2} The court initially sentenced Venes on March 25, 2011. At the time, the court had no obligation to make findings before imposing consecutive sentences — former
{¶3} We acknowledge that the court in State v. Pete, 7th Dist. No. 12 MA 36, 2013-Ohio-663, found that the trial court did not have to apply the law in effect at the time of sentencing. In Pete, the court acknowledged that
The General Assembly expressly provided in Section 4 of H.B. 86: “The amendments * * * apply to a person who commits an offense specified or penalized under those sections on or after the effective date of this section[.]” Pete committed the offense on August 18, 2011. Thus, the trial court was not required to make the consecutive sentence findings prior to sentencing Pete to consecutive sentences
Id. at ¶ 19, fn. 1.
{¶4} In reaching this conclusion, the Seventh District Court of Appeals failed to recognize that the language it quoted from Section 4 of H.B. 86 applied only to “division (A) of section 2929.14 of the Revised Code.” In other words, the felony penalties set forth in
II
{¶5} Having found that the court‘s decision to impose consecutive sentences was governed by
A
{¶6}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Id.
B
{¶7} Coinciding with this revived version of
{¶8} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the supreme court considered the relevant standard of review in the post-Foster era in which the findings necessary to impose consecutive sentences under former
{¶9} Kalish, as is any plurality opinion, is of “questionable precedential value.” See Kraly v. Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). Nevertheless,
{¶10} The post-Foster era ended with the enactment of H.B. 86 and the revival of statutory findings necessary for imposing consecutive sentences under
C
{¶11}
{¶13} We have never held that the court has to state its findings word-for-word as set forth in
{¶14} But not requiring slavish adherence to the specific wording of the statute is not the same as relieving the court of the duty to make the required “findings.” State v. Jones, 8th Dist. No. 98371, 2013-Ohio-489, ¶ 23.
{¶15} The supreme court has recognized that “Ohio appears to be unique in having a rule that sentences of imprisonment shall be served concurrently.” Foster at ¶ 66. The imposition of consecutive sentences in Ohio is thus an exception to the rule that sentences should be served concurrently. And there is no doubt that the provisions of H.B. 86, like those of S.B. 2 before it, were intended, among other things, to alleviate overcrowding in the
{¶16} By imposing a requirement that the trial judge make specific findings before ordering sentences to be served consecutively, the General Assembly toughened the standard for consecutive sentences. However, the revived consecutive sentencing statute codified in
{¶17} Because the statute so clearly requires specific findings for the imposition of consecutive sentences, those findings must be entered at the time the court orders sentences to be served consecutively. What we mean by this is that regardless of what the trial judge might say during sentencing regarding the purposes and goals of criminal sentencing, compliance with
{¶18} We recognize that this strict approach will likely cause the reversal of some consecutive sentences. However, a long-view approach will ultimately result in far fewer appeals of consecutive sentences. And it should go without saying that if the court has to struggle to make the necessary findings for imposing consecutive sentences, it may be that consecutive sentences are unwarranted in the first place.
D
{¶19} If the court has properly made the required findings in order to impose consecutive sentences, we must affirm those sentences unless we “clearly and convincingly” find “[t]hat the record does not support the court‘s findings[.]”
{¶20} It is important to understand that the “clear and convincing” standard applied in
{¶22} In reaching this conclusion, we note that the term “record” as used in
III
{¶23} The court made no specific findings before ordering Venes to serve his sentences consecutively. Most of its discussion related to the 24-year sentence it imposed during the first sentencing and defense counsel‘s argument that the first 24-year sentence was disproportionate to those given to similar offenders. The court stated:
The court has reviewed for purposes of sentencing, and the need to protect the public, [sic] the court finds that sentencing you on any less than four counts of this indictment would seriously demean the crime involved here, which is cyber-porn of children and the court will impose the sentence that I imposed originally on this case.
I see no reason to deviate downward and I will not deviate upward even based on the diagnosis of pedophilia because I believe that the court‘s sentence is ample to cover that diagnosis.
* * *
Counts one, two, and three consecutive. And eight years consecutive on each count for a total of 24 years.
All other counts will be eight years on each count concurrent to each other and to counts one, two, and three.
{¶24} It is possible that some of the court‘s statements made during sentencing could be pieced together and found, however remotely, to encompass the findings necessary to impose consecutive sentences. But for us to engage in that kind of review defeats the purpose of
{¶25} The court did not make separate and distinct findings before ordering Venes to serve his sentences consecutively. In fairness to the court, it may not have understood that it was required to make those findings after the effective date of H.B. 86 and recodification of
{¶26} We therefore sustain the second assignment of error and remand for resentencing.
IV
{¶27} Although we are remanding for resentencing, we think it prudent to address Venes‘s argument that his 24-year sentence was grossly disproportionate to those given to
{¶28}
Each case stands on its own unique facts, so we have concluded that “[a] list of child pornography cases is of questionable value in determining whether the sentences imposed are consistent for similar crimes committed by similar offenders since it does not take into account all the unique factors that may distinguish one case from another.” State v. Siber, 8th Dist. No. 94882, 2011-Ohio-109, ¶ 15.
Id. at ¶ 27.
{¶29} Although Venes pleaded guilty to “only” 98 counts of possessing child pornography, the court noted that this was a “staggering” case: Venes had nearly 4,400 images of child pornography and 55 videos or movies depicting children involved in sexual activity. The court also noted that investigators found that Venes‘s pornography collection included images of “children as young as babies being vaginally raped, anally raped, being forced to engage in fellatio, cunnilingus and being forced to engage in bestiality.” By any measure, the depth and breadth of his collection of child pornography — described by the police as unprecedented in their experience — warranted significant punishment. We have
{¶30} This cause is reversed and remanded to the trial court for resentencing consistent with this opinion.
It is ordered that appellant recover from said appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;
KENNETH A. ROCCO, J., CONCURS WITH SEPARATE OPINION.
KENNETH A. ROCCO, J., CONCURRING:
{¶31} Although I agree with the majority opinion‘s disposition of this appeal, I concur in judgment with a separate opinion; I feel compelled to write separately in order to express my empathy with the dilemma faced by trial courts with respect to felony
{¶32} The majority opinion describes the lack of guidance available to trial courts by describing the back-and-forth nature of the law in effect in ¶¶ 2-5 and in Subsections “B,” “C,” and “D.” Indeed, this court finds itself in the same quandary. Despite the majority opinion‘s pronouncement in ¶ 10 that it considers the standard of review set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, no longer valid after H.B. 86 went into effect, other panels of this court have stated precisely the opposite. See, e.g. State v. Schmidt, 8th Dist. No. 98731, 2013-Ohio-1552, fn. 1; State v. Perez, 8th Dist. No. 98417, 2013-Ohio-1178; State v. Timothy, 8th Dist. No. 98402, 2013-Ohio-579.
{¶33} This court cannot agree on the standard of appellate review; how much harder must it be for trial courts to know which precedent to follow when it comes to imposing sentence.